Burden of Proof & Doctor’s Opinions

Some folks are suffering from the misconception that after you’ve had an auto accident then you just shove your medical bills and records received after the accident to the insurance company and, voila, money gushes forth.

Would that it were so.

It is VITAL to remember that as a plaintiff, you have the burden of proof. That means that you have to prove (in practice more like demonstrate to the carrier that you can prove) that your damages were proximately caused by the negligence of the defendant. JUST because you can show damages that were sustained after the accident does NOT mean that the defendant is on the hook for that. This is the principle of post hoc ergo propter hoc or “it happened after so it happened because of.” This principle is NOT accepted as proof of medical causation in NC courts.

Our burden of proof as plaintiff is the preponderance of the evidence. In the medical causation context, the language we’re looking for is “more likely than not.” That means what your licensed and qualified health care provider must say for you to prevail is that their opinion is that it is more likely than not that the accident you were in caused the condition you’ve complained of. That sounds like a lot, but it’s really not. The health care provider simply needs to believe that the most likely cause of the condition is the accident. “Most likely” can be reduced to the percentage 50.1%. That’s NOT “beyond a shadow of a doubt,” and it sure as hell ain’t 100% certainty.

Sadly, while it’s a fairly simple burden to explain, and an even simpler opinion to form, health care providers are often very hesitant to provide such an opinion. Don’t get me wrong, some docs will jump right up to help you if you have a request like this. But that is often the exception, not the rule. For whatever reason, a lot of obstacles present themselves when this sort of opinion is sought out. Sometimes it’s an outrageous fee from the provider. Sometimes merely asking the question gets the doc to change their mind from what they’ve written in the notes. This last one is perhaps a result of a doctor simply hoping to avoid being called to court, the theory being that if they give a negative opinion they won’t be called as a witness, regardless of what their previous/actual opinion was.

The system is a mess, I know. None of it is as easy as it could be or should be. All the more reason you should seek the help of an attorney if you’re injured in an accident. Call me at 919-929-2992.